Defining Sexual and Gender-Based Violence in the Refugee Context

Defining Sexual and Gender-Based Violence in the Refugee Context

Defining Sexual and Gender-Based Violence in the Refugee Context

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Defining Sexual and Gender-Based Violence in the Refugee Context Andrew Simon-Butler and Professor Bernadette McSherry IRIS WORKING PAPER SERIES, NO. 28/2019

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IRiS Working Paper Series The Institute for Research into Superdiversity (IRiS) Working Paper Series is intended to aid the rapid distribution of work in progress, research findings and special lectures by researchers and associates of the Institute. Papers aim to stimulate discussion among scholars, policymakers and practitioners and will address a range of topics including issues surrounding population dynamics, security, cohesion and integration, identity, global networks, rights and citizenship, diasporic and transnational activities, service delivery, wellbeing, social exclusion and the opportunities which superdiverse societies offer to support economic recovery.

The IRiS WP Series is edited by Dr Nando Sigona and Dr Aleksandra Kazlowska at the Institute for Research into Superdiversity, University of Birmingham. We welcome proposals for Working Papers from researchers, policymakers and practitioners; for queries and proposals, please contact: All papers are peer-reviewed before publication. The opinions expressed in the papers are solely those of the author/s who retain the copyright. They should not be attributed to the project funders or the Institute for Research into Superdiversity, the School of Social Policy or the University of Birmingham.

Papers are distributed free of charge in PDF format via the IRiS website. Hard copies will be occasionally available at IRiS public events. Institute for Research into Superdiversity University of Birmingham Edgbaston B15 2TT Birmingham UK This Working Paper is also part of the SEREDA Working Paper Series (No.2/2019) For more information on SEREDA:

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Abstract The term ‘sexual and gender-based violence’ (SGBV) has gained prominence in international human rights documents and within the academic discourse relating to refugees.

The SEREDA project (SExual and Gender Based Violence in the REfugee Context: From Displacement to Arrival) aims to understand the incidence and nature of SGBV by refugees who have fled conflict in the Levant Region. This working paper provides an overview of how key terms relating to SGBV have been defined and how these terms may apply in the refugee context. It examines how a broad definition of SGBV has been used to explore current practices in conflict settings, with particular focus on the current conflict in Syria. The international community’s approach to SGBV is examined, with attention paid to definitions in Conventions and under international law.

Finally, what gender means in the context of SGBV and the resulting debates about who should be the primary focus of humanitarian intervention are discussed.

Keywords Sexual and gender-based violence, SGBV, refugees, Syria, international law Citation Simon-Butler, A. and McSherry, B. (2018) Defining Sexual and Gender-Based Violence in the Refugee Context, IRiS Working Paper Series, No. 2/2018, Birmingham: Institute for Research into Superdiversity About the authors Andrew Simon-Butler is a Research Assistant at the Melbourne Social Equity Institute, University of Melbourne: Professor Bernadette McSherry is the Foundation Director of the Melbourne Social Equity Institute, Adjunct Professor of Law at Melbourne Law School, University of Melbourne and the Faculty of Law, Monash University and Commissioner, Victorian Law Reform Commission: Funding The SEREDA Project is funded by the Wellcome Trust, Volkswagen Stiftung and Riksbankens Jubileumsfond through the Europe and Global Challenges Initiative.

This paper was supported by the Melbourne Social Equity Institute, University of Melbourne, Australia.

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Contents INTRODUCTION ___ 5
Gender-Based Violence ___ 5
Sexual Violence ___ 7
Sexual and Gender-Based Violence (SGBV ___ 8
The Gendered Nature of SGBV ___ 9
SGBV Within Conflict Settings ___ 9
Structural and Physical SGBV ___ 10
International Community’s Approach to SGBV ___ 11
Declaration on the Elimination of Violence Against Women ___ 12
Convention on the Elimination of All Forms of Discrimination Against Women ___ 12
UN Committee on the Elimination of Discrimination Against Women & SGBV ___ 13
The Torture Convention ___ 15
SGBV as Crimes Before the International Criminal Court ___ 17
Perpetrators AND VICTIMS of Sexual Violence in Refugee Settings ___ 23
SGBV and Male Victims ___ 25
LGBTQI Persons and SGBV ___ 27
SGBV in the Current Syrian Conflict ___ 27
Intimate Partner Violence ___ 28
Survival Sex ___ 29
Statelessness ___ 29
Declaration on Preventing Sexual Violence in Conflict ___ 29
International Human Rights Instruments ___ 35
Regional Human Rights Instruments ___ 37
International Humanitarian Law Instruments – International Armed Conflicts ___ 38
International Humanitarian Law Instruments – Non-International Armed Conflicts .

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INTRODUCTION The term ‘sexual and gender-based violence’ (SGBV) has gained prominence in international human rights documents and within the academic discourse relating to refugees. The SEREDA project (SExual and Gender Based Violence in the REfugee Context: From Displacement to Arrival) aims to understand the incidence and nature of SGBV experienced by refugees who have fled conflict in the Levant Region. This working paper provides an overview of how key terms relating to SGBV have been defined and how these terms may apply in the refugee context. Definitions are important to increase understanding of what is occurring in this context, enable proper data collection, establish legal and other methods of redress and most importantly, to support work towards the prevention of such violence.

While there is no consensus at present as to what constitutes SGBV, it appears that a broad definition will best assist for the purposes of redress and prevention.

This introduction outlines different definitions of gender-based violence and sexual violence. The paper then examines how a broad definition of SGBV has been used to explore current practices in conflict settings before turning to concepts of structured and physical violence. The international community’s approach to SGBV is then set out, with attention paid to definitions in Conventions and under international law. The next section examines recent literature exploring what gender means in the context of SGBV and outlines debates about who should be the primary focus of humanitarian intervention.

The final section deals with reports of SGBV related to the current conflict in Syria.

Gender-Based Violence ‘Gender-based violence’ is an umbrella term that has not been universally defined. A narrow interpretation confines the term to meaning rape and related sexual assault.1 More commonly, the term has been used to cover a spectrum of violence involving a gendered element such as domestic violence, human trafficking, harmful traditional practices (such as female genital mutilation and both early and forced marriage), as well as other forms of physical and emotional abuse.2 A range of institutional factors have been identified as driving gender-based violence, however defined.

These factors include gender inequality and discrimination, maledominated power and control structures, and social and cultural attitudes about women and men. 3 Inequality and discrimination embedded in rigid gender power relations foster many social, cultural and economic norms which are discriminatory. This gender inequality lies at 1 Michelle Hynes and Barbara Lopes Cardozo, ‘Observations From the CDC – Sexual Violence Against Refugee Women’ (2000) 9(8) Journal of Women’s Health & Gender-Based Medicine 819- 823 at 819.

2 Ibid. 3 M Marsh, S Purdin and S Navani, ‘Addressing Sexual Violence in Humanitarian Emergencies’ (2006) 1(2) Global Public Health 133-146 at 139.

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the core of all forms of gender-based violence in both conflict and non-conflict settings. The impact of this systemic discrimination is heightened at key intersections involving sexual orientation and gender identity, race, ethnicity, religion, economic status and disability, rendering individuals more vulnerable to violence, particularly in zones of conflict. In such conflict settings, existing discriminatory laws and norms are exacerbated, increasing vulnerability to gender-based violence, the severity of harm to survivors and their inability to seek redress.4 Globally, refugees experience the full spectrum of gender-based violence throughout the refugee experience, although much of the scholarly and international attention has been focused on sexual violence, such as rape and coerced sex.5 While acknowledging that some male refugees experience gender-based violence, research indicates that most female refugees experience some form of it.6 While all persons are affected by violence during times of conflict, women and girls are most at risk of gender-based violence due to the lack of social protection, safe access to services and the use of sexual violence as a weapon of war.7 The physical consequences of gender-based violence against female refugees may include homicide, serious injury, unwanted or early pregnancy, sexually transmitted infections (including infertility and HIV) and vulnerability to disease.

The psychological health consequences include suicide and mental health problems.8 Women and girls may suffer severe psychological impacts and physical injury from instances of gender-based violence prevalent within the refugee context. As Pittaway and Bartolomei explain, the consequences of gender-based violence are itself often gendered: Women ... face the additional consequence of bearing children of rape, and many girls who are too young for child-bearing die. Women and girls are isolated from families or communities, and all bear a burden of stigma. Disabled women are often the target of sexual violence.

Lesbian and transgender women are subjected to 'corrective rape' and sometimes killed. Many women are forced to engage in survival sex to feed themselves and their families, with the additional stigma of prostitution. Many face forced marriage. Men are shamed because they cannot protect their female family members, and communities suffer collective guilt. 9 4 Lisa Davis, ‘ISIL, the Syrian Conflict, Sexual Violence, and the Way Forward: Syrian Women’s Inclusion in the Peace Processes’ (2016) 48(4) New York University Journal of International Law and Politics 1157-1190 at 1173.

5 Hynes and Cardozo (n 1) at 819. 6 Eileen Pittaway and Linda Bartolomei, ‘Enhancing the Protection of Women and Girls Through the Global Compact on Refugees’ (2018) 57 Forced Migration Review 77-79 at 77. 7 Ghida Anani, ‘Dimensions of Gender-Based Violence Against Syrian Refugees in Lebanon’ (2013) 44 Forced Migration Review 75-78 at 75. 8 Hynes and Cardozo (n 1) at 820. 9 Pittaway and Bartolomei (n 6) at 77-78.

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Sexual Violence Sexual violence is one key component of the umbrella term gender-based violence.10 A narrow definition of sexual violence (usually based upon domestic criminal law definitions) is sometimes used.

For example, the United States Centers for Disease Control and Prevention defines sexual violence as: ... any nonconsensual completed or attempted contact (between the penis and the vulva or the penis and the anus involving penetration, however slight), nonconsensual contact between the mouth and the penis, vulva, or anus; nonconsensual penetration of the anal or genital opening of another person by a hand, finger, or other object; nonconsensual intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks; or nonconsensual noncontact acts of a sexual nature such as voyeurism and verbal or behavioral sexual harassment.

All the above acts also qualify as sexual violence if they are committed against someone who is unable to consent or refuse ___ 1
The United Nations Secretary-General has described sexual violence more broadly using the language of ‘sexual exploitation’ to encompass “any actual or attempted abuse of a position of vulnerability, differential power, or trust, for sexual purposes, including, but not limited to, profiting monetarily, socially or politically from the sexual exploitation of another”. 12 ‘Sexual abuse’ is then defined as “the actual or threatened physical intrusion of a sexual nature, whether by force or under unequal or coercive conditions”.13 Sexual violence may be understood as part of a continuum of violence and discrimination in which gender rights suffer before, during, and post-conflict.

Comprehensively addressing the rights and humanitarian needs of survivors of sexual violence in conflict, particularly refugees, requires addressing pre-existing threats to survivors embedded in discriminatory laws and patriarchal social norms.14 Within the refugee context, sexual violence encompasses a range of damaging behaviour including not only rape and other sexual assaults, but also attempts and offers of food, protection, documents or other assistance in exchange for sexual favours.15 Sexual assault, exploitation and harassment occurs at every stage of the refugee journey, beginning with violence faced in the country of origin undergoing conflict through to arrival and settlement in the (often European) country of protection.

The transactional sex that 10 Marsh, Purdin and Navani (n 3) at 133. 11 K Basile and L Saltzman, Sexual Violence Surveillance: Uniform Definitions and Recommended Data Elements (Atlanta: Centers for Disease Control and Prevention – National Center for Injury Prevention and Control, 2002).

12 United Nations Secretary-General, Secretary’s Bulletin: Special Measures for Protection from Sexual Exploitation and Sexual Abuse, UN Doc ST/SGB/2003/13 (9 October 2003) at 1. 13 Ibid at 1. 14 Davis (n 4) at 1173. 15 CJ Fowler, J Dugan-Mair and PA Bolton, ‘Assessing the Opportunity for Sexual Violence Against Women and Children in Refugee Camps’ (2000) Journal of Humanitarian Assistance 1-10 at 1.

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refugees are reported to be forced to engage in to ‘pay for’ travel documents, border access or the journey itself, may also be viewed as a form of sexual violence.16 The United Nations’ International Criminal Tribunal for Rwanda (ICTR) provided a comprehensive definition of sexual violence appropriate to refugees in its 1998 Akayesu decision as "any act of a sexual nature which is committed on a person under circumstances which are coercive."17 Such sexual violence, which in some instances may have deep cultural roots and is exacerbated in refugee settings, constitutes violations of refugees’ fundamental human rights.18 Sexual and Gender-Based Violence (SGBV) Given the prevalence and importance of sexual violence as a key aspect of gender-based violence, the combined term ‘sexual and gender-based violence’ (SGBV) has gained prominence particularly within the discourse about refugees.

SGBV may be viewed as a global public health issue, a violation of human rights and, in egregious cases, may constitute a crime against humanity. It comprises sexual, emotionalpsychological, physical and socio-economic violence as well as harmful cultural practices. In addition to its negative effect on victims’ well-being and participation in society, SGBV may have significant consequences on sexual, reproductive, physical and psychological health at the international level,19 such as the reported occurrence of SGBV afflicting refugees seeking protection from the ongoing crisis in Syria.

In the United Nations Secretary-General’s 2017 report, Special Measures for Protection from Sexual Exploitation and Abuse: A New Approach, examples of the different kinds of SGBV perpetrated against adults include: rape, sexual assault, other forms of sexual violence, transactional sex, solicitation of transactional sex, exploitative relationships and trafficking for sexual exploitation and abuse.

The different kinds of SGBV against children include: child rape, sexual assault, solicitation of child prostitution, trafficking for sexual exploitation and abuse and other forms of sexual violence against children.20 16 Sylvia Yazid and Agatha Natania, ‘Women Refugees: An Imbalance of Protecting and Being Protected’ (2017) 13(1) Journal of Human Security 34-42 at 34. 17 Prosecutor v Jean-Paul Akayesu, Trial Chamber I, Case No ICTR-96-4-T, 2 September 1998, [598].

18 Alice Farmer, ‘Refugee Responses, State-Behavior, and Accountability for Human Rights Violations: A Case Study of Sexual Violence in Guinea’s Refugee Camps’ (2006) 9 Yale Human Rights & Development Law Journal 44-84 at 45. 19 Ines Keygnaert, Nicole Vettenburg and Marleen Temmerman, ‘Hidden Violence is Silent Rape: Sexual and Gender-Based Violence in Refugees, Asylum Seekers and Undocumented Migrants in Belgium and the Netherlands’ (2012) 14(5) Culture, Health & Sexuality 505-520 at 505. 20 Special Measures for Protection from Sexual Exploitation and Abuse: A New Approach – Report of the Secretary-General, UN GAOR, 71st sess, UN Doc A/71/818 (28 February 2017).

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The Gendered Nature of SGBV While men and boys are subjected to SGBV, research indicates that such acts disproportionately affect women and girls. This appears to be because SGBV stems from male and female gender roles that attempt to relegate women to inferior status. When men and boys are subjected to sexual violence, the intent itself is often gendered in nature, in that such violence seeks to emasculate and feminise the male victims. 21 International recognition of the gendered experiences of conflict, forced migration and the refugee experience has gradually developed since the Second World War, and substantively since the 1990s.

Within conflict settings there is almost uniformly large-scale increases in SGBV beyond the domestic sphere, including rape, multiple perpetrator rape, and coercive and forced sex for survival. While all social groups and individuals can be subjected to physical, emotional, psychological and structural violence, particularly during times of conflict, women and girls are disproportionately subjected to the perpetration or threat of SGBV, in some or all of these forms.22 SGBV Within Conflict Settings The nature of SGBV perpetrated against refugees within conflict settings can be categorised into first, SGBV perpetrated as a method of warfare23 and secondly, opportunistic violence.

An awareness of the implications of rape as affecting the individual survivor, the family and the community often underlies the use of rape as a strategy of warfare.24 In many cultures, notions of family honour are tied to a daughter’s virginity and social concepts of honour may be intricately linked to the female body.

Investigations by the United Nations’ International Criminal Tribunal for the former Yugoslavia (ICTY) into sexual violence perpetrated during the 1991-2001 Yugoslav Wars describe rape as a weapon of war designed to terrorise and humiliate communities as well as serve as a tool of genocide. Similar warfare strategies have been deployed in recent conflicts afflicting Somalia, Rwanda, Sri Lanka, the Eastern Democratic Republic of Congo, Sierra Leone, and Sudan.25 SGBV may also encompass opportunistic violence perpetrated within the climate of impunity present in conflict zones where there exists a breakdown of both social and legal systems.

Even though not an explicit strategy of warfare, such aberrant acts may be both systematic and large-scale. These crimes do not usually fall within the purview of international tribunals but rather of local justice systems; systems which are usually dysfunctional due to armed 21 Marsh, Purdin and Navani (n 3) at 134. 22 Victoria Canning, ‘International Conflict, Sexual Violence and Asylum Policy: Merseyside as a Case Study’ (2014) 34 Critical Social Policy 23-45 at 24.

23 Marsh, Purdin and Navani (n 3) at 135. 24 Ibid at 134. 25 Ibid at 135.

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conflict where impunity is the norm.26 The international community largely abdicates to domestic law jurisdiction over rape, sexual assault (including murder), forced prostitution and reproductive subordination. Margareth Etienne argues that it is unclear why SGBV abuses in most instances are left to the discretion of (often dysfunctional) domestic judicial systems while other types of human rights violations are far more commonly dealt with at the international level.27 Structural and Physical SGBV The SGBV to which refugees are subject can also be categorised by dividing SGBV into two main categories for analytical purposes – structural violence and physical violence.28 Both structural and physical violence against refugees, particularly refugee women, systematically occurs throughout the refugee experience.29 Structural violence occurs when rules or policies systematically discriminate against or degrade specific groups within a community.

Inside refugee camps, the administration and physical layout of the camp itself, to policies relating to security, healthcare, shelter, food distribution and sanitation systems specifically discriminate against and degrade women. 30 A prominent example of structural violence within the refugee setting is the widespread policy of giving only one ration card per family in the name of the male head of household. Such practices perpetuate women's dependence and strengthen men's control over women, ultimately rendering women more vulnerable to SGBV.31 Further, the structural violence that women experience in refugee settings may provide the basis for physical violence perpetrated against them.32 Physical violence includes the entire spectrum of harmful physical contact, including sexual bartering, public beating, domestic violence, sexual assault and rape.33 It includes all types of physical assault including attempts and threats of assault as well as harmful traditional practices such as early/forced marriage and female genital mutilation.

Emotional and psychological abuse also fall within this category.Physical violence as SGBV is perpetrated by a wide variety of actors and occurs at all levels within refugee communities: from individual and relationship levels to community and societal levels.34 26 Ibid. 27 Margareth Etienne, ‘Addressing Gender-Based Violence in an International Context’ (1995) 18 Harvard Women’s Law Journal 139-170 at 158.

28 Anne Lise Purkey, ‘Whose Right to What Justice – The Administration of Justice in Refugee Camps’ (2011) 17 New England Journal of International and Comparative Law 121-157 at 134. 29 Malinda M Schmiechen, ‘Parallel Lives, Uneven Justice: An Analysis of Rights, Protection and Redress for Refugee and Internally Displaced Women in Camps’ (2003) 22(2) Saint Louis University Public Law Review 473-520 at 484. 30 Ibid at 484. 31 Purkey (n 28) at 135. 32 Schmiechen (n 29) at 489. 33 Ibid at 484. 34 Purkey (n 28) at 135.

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International Community’s Approach to SGBV Many scholars and activists have demanded increased recognition of SGBV as constituting violations of basic human rights, arguing that while the international community has long acknowledged human rights abuses based on race and religion, similar attention has not been paid to gender-based crimes.35 The international community has largely resisted the idea of classifying gender-based abuses within its system of binding international rights protections under international law (a selection of both international and regional human rights instruments with relevance to SGBV are listed in the Appendix).

Such a classification, including potentially a dedicated international convention combatting SGBV, would be a key step in addressing SGBV abuses at the global level. The United Nations has instead over its seven decades enacted separate conventions engaging the issue of gender bias in specific arenas: these include the 1949 Convention for the Suppression of the Traffic in Persons and Exploitation of the Prostitution of Others, the 1953 Convention on the Political Rights for Women, the 1958 Convention Concerning Discrimination in Respect of Employment and Occupation, the 1960 Convention Against Discrimination in Education, the 1979 Convention on the Elimination of Discrimination Against Women (CEDAW) and the 1990 Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.36 However, as Etienne explains, these conventions have failed adequately to address SGBV at the international level: First, and perhaps most obviously, the behavior that they seek to control or eradicate persists and has not significantly diminished.

Violence against women continues to be pervasive. Second, many United Nations member countries have refused to sign these conventions, and those that have signed them do not conscientiously enforce them. Third, few parties outside of the political international community know how to use these bodies and conventions as a means of redress. It is unclear whether the United Nations' commitment to human rights for women is particularly weak in these areas or whether the framework of international law is an inappropriate locus for addressing the particular forms of abuses faced by women.37 However, the continued reliance on such conventions and international public law generally remains justified at least to some extent since, even when this approach of the United Nations to SGBV has had little effect on actual behaviour, it has been instrumental in reconfiguring the way in which the international community thinks about SGBV abuses.38 35 Etienne (n 27) at 140.

36 Ibid at 143. 37 Ibid at 143-144. 38 Ibid at 146.

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Declaration on the Elimination of Violence Against Women The 1993 non-binding Declaration on the Elimination of Violence Against Women provides one of the earlier definitions of SGBV in international law. It defines ‘violence against women’ as: any act of gender-based violence that results in, or is likely to result in, physical, sexual, or mental harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.39 The Declaration also states: [V]iolence against women is a manifestation of historically unequal power relations between men and women [ V]iolence against women is one of the crucial social mechanisms by which women are forced into a subordinate position compared with men.40 This Declaration is indicative of an increasing recognition that women are subordinated, discriminated against and suffer SGBV and that such practices are legally wrong and should be actionable under international human rights law.41 Convention on the Elimination of All Forms of Discrimination Against Women The first article of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), defines discrimination against women as: [A]ny distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.42 While CEDAW acknowledges the necessity of a mix of political, economic, social, cultural, and civil freedoms, it continues to define the rights of women in relation to the positive rights of men.

For although CEDAW guarantees to women all rights on a basis equal to men, it does not provide women special protection against harms specific to their experiences as women. Some commentators see this as an embedded conceptual defect.43 39 Declaration on the Elimination of Violence Against Women, GA Res 48/104, UN GAOR, 48th sess, 85th plen mt, UN Doc A/RES/48/104. 40 Etienne (n 27) at 151. 41 Ibid at 146. 42 Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981) art 1. 43 For example Etienne (n 27) at 148.

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Many of the human rights and fundamental freedoms CEDAW refers to are defined in other international human rights treaties such as the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). These include numerous rights applicable to refugees such as the right to life, security of person, the right not to be tortured or be subject to degrading treatment, the right to have equal protection before the law and the right to adequate health and well-being which includes food, clothing, housing, and medical care.44 CEDAW also includes some specific articles particularly relevant to refugees and SGBV.

For example, Article 6 states that "State Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women." This means that States party should implement legislation safeguarding women from sexual slavery or coercion into prostitution or survival sex. Similarly, CEDAW’s Article 12 declares that "State Parties shall take all appropriate measures to ... ensure ... access to health care services, including those related to family planning."' This obligates parties to end the sexual bartering that can be widespread in refugee camps.

Additionally, this article articulates the right refugee women enjoy to contraception and other reproductive health care.45 Despite its shortcomings, CEDAW possesses a powerful declaratory effect, announcing to the world that discrimination against women, including SGBV as the most violent form of such discrimination, is never acceptable. Moreover, the United Nations' identification of human rights for women as an international priority gives notice to potential violators, potentially deters SGBV abuses, and legitimises domestic legislation and punishment. Therefore, the failure of CEDAW and international law to adequately protect women does not negate the crucial role that it plays in establishing positive norms.

Even for countries outside of the CEDAW regime, the international legal norms it helps establish provide a measure by which other nations may judge their actions.46 UN Committee on the Elimination of Discrimination Against Women & SGBV In 1992 the Committee on the Elimination of Discrimination Against Women (established by CEDAW) issued its General Recommendation No. 19 dealing exclusively with violence against women. In this document the Committee states that SGBV is a form of discrimination which seriously inhibits a woman's ability to enjoy rights and freedoms on an equal basis with men.

It also defines gender-based violence as that which is directed against a woman because she is female or which affects women disproportionately, with “sexual harm or suffering” and “threats of such acts” specifically included as forms of gender-based violence. Therefore, the term used by the Committee of ‘gender-based violence’ is synonymous with SGBV.47 The Committee further notes that “[g]ender-based violence may breach specific provisions of the 44 Schmiechen (n 29) at 497. 45 Ibid at 498. 46 Etienne (n 27) at 160. 47 United Nations High Commissioner for Refugees, ‘UNHCR, Sexual Violence Against Refugees: Guidelines on Prevention and Response (Extracts)’ (1995) 7(4) International Journal of Refugee Law 720-755 at 747-748.

See: United Nations High Commissioner for Refugees, Sexual Violence Against Refugees: Guidelines on Prevention and Response (Geneva: United Nations High Commissioner for Refugees, 1995).

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Convention [on the Elimination of Discrimination Against Women], regardless [of] whether those provisions expressly mention violence”.48 It also clarified in its General Recommendation No. 19 that discrimination against women, as defined in Article 1 of CEDAW, includes gender-based violence, and that SGBV therefore constitutes a violation of women’s human rights.49 In its 2017 General Recommendation No. 35, which updates General Recommendation No. 19, the Committee employs the revised language of ‘gender-based violence against women’ to strengthen the idea that it is a social rather than an individual problem, requiring comprehensive responses, beyond those targeted at specific events, individual perpetrators and victims/survivors.50 General Recommendation No.

35 clarifies that the Committee considers SGBV against women constitutes one of the fundamental social, political and economic means by which the subordinate position of women with respect to men and their stereotyped roles are perpetuated. SGBV therefore serves as a critical obstacle to the achievement of substantive equality between women and men and to the enjoyment by women of their human rights and fundamental freedoms, as guaranteed by CEDAW.51 Reiterating that SGBV is itself a form of discrimination against women as defined in Article 1 of CEDAW, the Committee in General Recommendation No.

35 holds that “[w]omen’s right to a life free from gender-based violence is indivisible from and interdependent on other human rights.”52 These include the rights to life, health, liberty and security of the person, equality and equal protection within the family, freedom from torture, cruel, inhumane or degrading treatment, and freedom of expression, movement, participation, assembly and association.53 As factors associated with the refugee experience, the Committee states in its 2017 General Recommendation No. 35 that: Gender-based violence against women is affected and often exacerbated by cultural, economic, ideological, technological, political, religious, social and environmental factors, as evidenced, among other things, in the contexts of displacement, migration, the increased globalization of economic activities, including global supply chains, the extractive and offshoring industry, militarization, foreign occupation, armed conflict, violent extremism and terrorism.

Gender-based violence against women is also affected by political, economic and social crises, civil unrest, humanitarian emergencies, natural disasters and the destruction or degradation of natural resources.54 48 Ibid. 49 Committee on the Elimination of Discrimination Against Women, ‘General Recommendation No. 35 on Gender-Based Violence Against Women, Updating General Recommendation No. 19’ (2017) 6(2) International Human Rights Law Review 279-306 at 280.

50 Ibid at 283. 51 Ibid. 52 Ibid at 286. 53 Ibid. 54 Ibid.

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It also notes in regard to the causes of SGBV that: [t]he Committee regards gender-based violence against women as being rooted in gender-related factors, such as the ideology of men’s entitlement and privilege over women, social norms regarding masculinity, and the need to assert male control or power, enforce gender roles or prevent, discourage or punish what is considered to be unacceptable female behaviour. Those factors also contribute to the explicit or implicit social acceptance of gender-based violence against women, often still considered a private matter, and to the widespread impunity in that regard.55 The Torture Convention The UN’s 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention) requires at its Article 16 that States: prevent ...

acts of cruel, inhuman or degrading treatment or punishment ..., when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. The manner in which the Torture Convention has construed the definition of torture, the paradigmatic human rights abuse, excludes most SGBV related crimes. For a prima facie case for torture under international law requires demonstrating that the actor inflicted torture "at the instigation of or with the consent or acquiescence of” a public official with the purpose of securing "information or a confession, punishing him for an act ...

or intimidating or coercing him" (Art I). Although this last clause initially appears applicable to rape, in order to contravene the Torture Convention, the rape must be a means of attaining a larger goal rather than being the goal itself. While the Torture Convention also states that torture can be a result of "discrimination of any kind” (Art I), States party have arguably acquiesced to numerous international SGBV atrocities by failing to use the language of this Convention to address rape and other SGBV related crimes as an act of torture based on gender discrimination.56 Ultimately, while torture against women often includes sexual intimidation, much of what is classified as SGBV does not constitute torture under this Convention because, legally defined, torture requires state action or at least acquiescence.57 The UN Committee on the Elimination of Discrimination Against Women in its General Recommendation No.

35 has, however, stated that SGBV perpetrated against women may amount to torture or cruel, inhuman or degrading treatment in certain circumstances, including in cases of rape, domestic violence or harmful practices. It goes on to declare that in certain cases, some forms of SGBV against women will constitute international crimes.58 It furthermore endorses the view that in determining when acts of SGBV against women amount to torture or cruel, inhuman or degrading treatment, a gender-sensitive approach is required to understand the level of pain and suffering, and that the purpose and intent 55 Ibid at 288.

56 Etienne (n 27) at 156-157. 57 Ibid at 157. 58 Committee on the Elimination of Discrimination Against Women (n 49) at 286-287.

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requirements for classifying such acts as torture are satisfied when acts or omissions are gender-specific or perpetrated against a person on the basis of their sex.59 SGBV UNDER INTERNATIONAL LAW International law prohibits some forms of SGBV. As detailed in the Appendix, this prohibition is found in various binding provisions of both human rights instruments (international and regional) and instruments of international humanitarian law (namely the Geneva Conventions), as well as in customary international law.60 In the past two decades, successful prosecutions of gender-based crimes as violations of international law have advanced in large measure due to the precedents created by the United Nations ad hoc tribunals (namely the International Criminal Tribunals for both Rwanda and the former Yugoslavia) and the International Criminal Court.

International law now treats rape (in certain circumstances) as a war crime, a crime against humanity, and/or an instrument of genocide. That is, some sexual assaults, whether perpetrated in international or internal armed conflict, can be prosecuted and punished under international law.61 Ultimately, however, international law generally requires that States only be held accountable for their own actions and treatment of individuals. States usually do not bear responsibility for the acts of private individuals against one another within their borders. Accordingly, many SGBV abuses most commonly perpetrated, such as sexual assault, domestic violence, rape and constraints on reproductive freedom, commonly fall outside the purview of State action and therefore largely outside the jurisdiction of international law.

The requirement that a State must in some way be involved in the perpetuation of SGBV abuses in order to qualify as violations of international human rights – the state action requirement – is a significant impediment in establishing gender-based rights. Consequently, the international community has relegated the majority of SGBV violations to the sphere of domestic state jurisdiction.62 However, the International Criminal Tribunal for Rwanda (ICTR) in its Akayesu decision63 expanded the definition of SGBV, finding that non-State actors, as well as State actors, can violate international humanitarian law (that being the law of war largely set out under the Geneva Conventions).64 Following the Akayesu case, it is possible for a non-military person to be convicted of sexual assault as a violation of Common Article 3 and Additional Protocol II (of the Geneva Conventions) even when physical contact does not occur, but was coerced and sexual in nature such as forcing a person to do activities while naked.

59 Ibid at 287. 60 United Nations High Commissioner for Refugees, ‘UNHCR, Sexual Violence Against Refugees’ (n 47) at 743.

61 Elizabeth-Merry Condon, ‘The Incoherent International Jurisprudence of Rape’ (2007) 3 Eyes on the ICC 23-32 at 23. 62 Etienne (n 27) at 157-158. 63 Prosecutor v Jean-Paul Akayesu, Trial Chamber I, Case No ICTR-96-4-T, 2 September 1998. 64 Schmiechen (n 29) at 483.

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Women and girls who are sexually assaulted by a State or non-State actor in a refugee camp, within a country that is experiencing internal armed conflict, can assert their legal rights under Common Article 3 of the Geneva Conventions and can argue for the broader protections based on Additional Protocol II and the ICTR’s Akayesu decision as persuasive, non-binding international law.

Using these provisions, the rights of refugee women to be free of sexual bartering, domestic violence, sexual assault and rape within the refugee camp environment are bolstered by international humanitarian law. 65 SGBV as Crimes Before the International Criminal Court In 2014, the Office of the Prosecutor of the International Criminal Court (ICC) launched its Policy Paper on Sexual and Gender-Based Crimes, the first policy paper to be issued by this office. This document represents an important development within the SGBV discourse and has the potential to transform how gendered acts within genocide, mass atrocity and war are prosecuted internationally.

The basis for this policy document is the explicit inclusion within the Rome Statute of the ICC of an expansive list of SGBV crimes, including rape, sexual slavery, enforced prostitution, forced pregnancy and enforced sterilisation. This was the first time in international criminal law that acts of SGBV had been this extensively enumerated as international crimes.66 However, under the ICC’s Rome Statute, to prosecute rape as a crime against humanity, its Article 7(0) requires that the rape occur "as part of a widespread or systematic attack directed against a civilian population, with knowledge of the attack." Similarly, rape may be prosecuted as a war crime pursuant to Article 8(2)(e)(vi), but the scope is again limited to instances where the rape is committed "as part of a plan or policy or as part of a large-scale commission of such crimes".

If the language "as part of" is construed narrowly to require a widespread, systematic attack or policy, many rapes committed as crimes of opportunity in conflict and post-conflict settings, rather than as deliberate acts of armed aggression, animated by larger policy objectives, will fall outside of this definition.67 For most instances of rape perpetrated against refugees, while occurring within the larger context of armed conflict, may not be committed by government or militia forces or, if committed by those forces, not committed in furtherance of those groups' objectives, thus seemingly not constituting crimes prosecutable before the ICC.68 The Rome Statute of the ICC contains an existing definition of the term ’gender’ at Article 7(3): “the two sexes, male and female, within the context of society.” This definition was deliberately constructively ambiguous to ensure international acceptance of the Rome Statute, particularly by conservative Catholic and Arab States.

The subsequent result had seen some confusion within – and outside of – the ICC as to how to properly interpret Article 7(3).69 65 Ibid at 511. 66 Valerie Oosterveld, ‘The ICC Policy Paper on Sexual and Gender-Based Crimes: A Crucial Step for International Criminal Law’ (2018) 24(3) William & Mary Journal of Women and the Law 443-458 at 443.

67 Condon (n 61) at 23. 68 Ibid. 69 Oosterveld (n 66) at 450-451.

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The ICC’s Policy Paper on Sexual and Gender-Based Crimes confronts this ambiguity of the Article 7(3) definition of ‘gender’. It does so directly by interpreting “context of society” as acknowledging the social construction of gender and its link to “male and female” as referring to the accompanying roles, behaviours, activities, and attributes assigned to each gender. The Policy Paper also indicates that, in accordance with Article 21(3) of the Rome Statute, it interprets and applies the definition of gender “in accordance with internationally recognised human rights” as they evolve over time, and “without any adverse distinction founded, inter alia on gender or other status.” This means that the Office of the ICC Prosecutor considers how international human rights law addresses, for example, SGBV against women and gender inequality.

This document confirms that the definition of gender refers to socially constructed norms of femaleness and maleness, with these gender norms often having a tremendous impact on how women and men are treated during periods of armed conflict and mass atrocity. Thus, the constructively ambiguous definition appearing at Article 7(3) of the Rome Statute is clarified by this ICC Policy Paper. This clarity seems to have also empowered the Office of the ICC Prosecutor, as it now engages directly on the question of gender in cases such as Prosecutor v. Ongwen70 and in its public statements. It also means that the constructively ambiguous definition of gender appearing in the Rome Statute cannot now ever be used to justify SGBV or gender discrimination.71 SGBV IN THE HUMANITARIAN AND REFUGEE CONTEXTS The 1951 Convention Relating to the Status of Refugees (Refugee Convention) defines a ‘refugee’ as a person forced to flee his or her country and unable to return because of a "wellfounded fear of being persecuted for reasons of race, nationality, membership of a particular social group or political opinion”.72 This definition, however, does not include persons who fear persecution by reason of their gender.73 During the early years of the Refugee Convention’s operation, women's claims for refugee status were only viewed as the derivative claims of a spouse accompanying a male refugee.74 There are moves internationally to include SGBV as an explicit basis for seeking refugee status.75 While SGBV is not yet recognised as specific grounds for seeking refugee status under the Refugee Convention framework, refugees can however apply for protection as a member of a Particular Social Group (PSG).

This can encompass women fleeing sexual violence, amongst 70 This ICC trial of Dominic Ongwen, alleged Brigade Commander of the Sinia Brigade of the Lord’s Resistance Army, began on 6 December 2016. The Prosecution has completed its presentation of evidence, and the Legal Representatives of Victims also called witnesses to appear before the Chamber. The trial resumed on 18 September 2018 with the opening statements of the Defence. See: 71 Oosterveld (n 66) at 451. 72 Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) art 1A(2).

73 Etienne (n 27) at 155. 74 Farmer (n 18) at 63-64. 75 Ibid at 65.

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